This Whole Mess With Ajit Pai, The Harlem Shake And Copyright Is Bad And Everyone's Wrong.

from the really.--everyone.-stop-it. dept

This is one of those frustrating stories where basically everyone's wrong about everything. Here's how it started: Just prior to Ajit Pai's FCC officially dumping net neutrality rules last week, the Daily Caller released a video with Pai. Pai seems to have a way of not realizing just how incredibly unfunny, tone-deaf and cringeworthy his "jokes" are -- but it doesn't stop him from trying again. If you somehow missed it, you can see the video here:

The video is bad and dumb and misleading and, yes, very, very cringeworthy. The pure awfulness of the video is what got people worked up initially, with Pai's supporters gleefully laughing at Pai's opponents for getting upset about it. If you can't see it for some reason, it involves Pai claiming that nothing is going to change on the internet following his bad decision to kill the FCC's net neutrality rules, and then attempts to show some examples: posting images of food and dogs to the internet, doing some online shopping, being a dorky Star Wars fan and, finally, "ruining a meme."

That meme? The Harlem Shake. If you were online in 2013, you almost certainly remember it. Because it was everywhere. For a couple months or so, everyone on the internet seemed to feel it was their obligation to create a video showing people crazy dancing to a snippet of the song "Harlem Shake" by "Baauer" the stage name of a music producer named Harry Rodrigues. The song, the Harlem Shake uses a sample from another song, Miller Time, by Philadelphia's Plastic Little. Also, the "con los terroristas" line was sampled from a singer named Hector Delgado.

Back in 2013, we actually had a few stories about copyright issues around the whole Harlem Shake phenomenon. First, we noted that Baauer and his label, Mad Decent, seemed to have engaged in selective enforcement of whatever copyright they might have held on the song. They left most videos live on, but did take down some from people they disagreed with. We also noted that the whole meme went viral not for anything that Baauer actually did, but because of the first few videomakers whose crazy videos turned it into a thing. Finally, we noted that Delgado and Plastic Little were demanding their cut as well.

And, of course, we should note that the whole Harlem Shake meme came and went pretty fast. I mean days after it went big, it was already declared dead. And, yes, this was part of the lame Pai joke.

Onto outrage two: soon after everyone was complaining about how awful (and inappropriate) this video was, some people noticed that one of the women dancing in the Ajit Pai Harlem Shake video... was a conspiracy theorist Pizzagater. Which, you know, is not really a good look for the freaking Chairman of the FCC (especially while making fun of people who are concerned about the future of the internet).

Outrage three: we're back to copyright. Baauer tweeted angrily that he supported net neutrality and was "taking action" saying "whatever I can do to stop this loser."

"The use of my song in this video obviously comes as a surprise to me as it was just brought to my attention. I want to be clear that it was used completely without my consent or council. My team and I are currently exploring every single avenue available to get it taken down. I support Net Neutrality like the vast majority of this country and am appalled to be associated with its repeal in anyway."

So, let's be clear why this is also bad. The use here is obviously fair use. In the past we argued that all of the Harlem Shake videos were likely fair use, but the case with the Pai video is even stronger. It's clearly a parody in making fun of the song's use in the old dead meme, and parody is non-infringing as fair use. If there was a lawsuit, Pai/FCC/Daily Caller would win. Furthermore, it appears that Baauer is basically trying to assert a sort of "moral" right into copyright that doesn't exist under US law. Moral rights, which are available in other countries (and only on limited works in the US -- but not music) allow an artist to block an otherwise legal usage by saying they don't want to be associated with it. But not in the US.

Indeed, Baauer seems to be admitting his intent to misuse copyright to silence speech he doesn't like. That's bad. Even if I agree that Pai's video is awful and his effort to destroy net neutrality is terrible, that still doesn't make it right to abuse copyright law to silence speech.

But... that didn't stop Baauer's label, Mad Decent, from going ahead and issuing a takedown and promising to sue if the video was not removed:

Official statement re the use of "Harlem Shake" in Daily Caller's video of FCC Chairman Ajit Pai: neither Mad Decent nor Baauer approved this use nor do we approve of the message contained therein. We have issued a takedown will pursue further legal action if it is not removed.

And, indeed, as with basically any YouTube takedown, the company took the video down:

There were many people who are quite rightly upset at Pai's killing of net neutrality who then quite wrongly cheered on this takedown. It may be fun to see someone you dislike have their speech silenced through abusive copyright takedowns, but that doesn't make it any less wrong. No matter how much you disagree with Pai (and we disagree with him around here quite a lot), pulling down his video over a copyright claim is clearly bad.

And that takes us to outrage four: The Daily Caller then totally flips its lid with laughable conspiracy theories about how YouTube only took the video down because Google supports net neutrality and wanted to silence Ajit Pai.

YouTube’s targeting of Daily Caller content and its willingness to remove our video for political purposes while millions of other uses are allowed to remain on the platform should stand as a terrifying prospect for every American.

Except that's ridiculous. YouTube takes down tons of videos when it receives a DMCA notice. Indeed, the web is filled with examples of YouTube taking down videos that should be protected by fair use. That's why users can counterclaim and say that it's fair use. And YouTube is pretty good about responding to such fair use counterclaims and getting the video back up. Which is what happened here. But, the Daily Caller insists the video only was put back up because it's big and has lots of influence (feel free to debate both of those points if you'd like).

There's still a possible future outrage: if Mad Decent and/or Baauer actually sue over it, which hopefully any reasonable lawyer will talk them out of doing.

So, again, everyone and everything in this story is awful. Pai's video is dumb, misleading, cringeworthy and awful. Pai's actions around net neutrality are awful. Pai cavorting with a conspiracy theorist is awful. Baauer and Mad Decent freaking out over obvious fair use of their song is awful. Mad Decent issuing a bullshit takedown is awful. YouTube complying with the takedown is awful. And the Daily Caller stupidly assuming the compliance with the takedown is for political reasons, rather than standard operating procedure for DMCA takedowns is awful.

In short: it's all awful. Horribly awful.

The FCC shouldn't be killing net neutrality. The chairman of the FCC shouldn't be making awful, misleading videos with nutty conspiracy theorists mocking the vast majority of the American public who disagree with his stupid plan. And he shouldn't include four year old memes, even if it's to parody old memes, because, really, let the fucking memes die. The people who got rich off the memes shouldn't then abuse copyright law to try to censor speech they don't like. And the people who made the stupid, awful video in the first place, shouldn't leap to laughable conclusions about why their video got taken down.

And I feel like I should end this post with "... and get off my lawn," though I'd much prefer that we live in a world where we weren't having competing narratives over censorship, where the internet remained open and free and non-discriminatory, and bogus copyright takedowns didn't take down expressive content, no matter how dumb it might be. Tragically, we're not there yet.

I can imagine the conversation:Mad Decent (MD) - We want to sue Pai for daring to use our song.Lawyer (L) - I don't think it's a good ide..MD - *shows a bunch of money*L - $_$ (sound of old cashier) Your wish is my command.

"Tragically, we're not there yet. "

If you are religious and believe in multiple incarnations then we might have it in our next lives. I'll see you there.

"some people noticed that one of the women dancing in the Ajit Pai Harlem Shake video... was a conspiracy theorist Pizzagater. Which, you know, is not really a good look for the freaking Chairman of the FCC (especially while making fun of people who are concerned about the future of the internet)"

This is surely the least surprising part of the whole thing? The man was installed in the FCC by a Birther who regularly retweets misleading information from conspiracy theorists and other questionable sources. That he pals around with people dumb enough to believe that a criminal sex ring is being run from the basement of a restaurant that doesn't have a basement is hardly of note in comparison.

Re:

One correction: he was installed as Chairman of the FCC by such a person.

He was already present at the FCC well before that person was in a position to have any say on the subject, having been installed by some previous administration (I haven't bothered looking up which one).

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You'd have to prove there are crimes to be prosecuted first. Given that the whole thing revolves around creative re-interpretations of menus and a supposed basement in a restaurant without a basement, I'd say it's unlikely to get any traction until evidence of a crime is actually found. In order to prosecute the perpetrators, you have to first prove that something is being perpetrated, and the evidence is lacking thus far.

The nutcases who have taken this conspiracy theory as reason to shoot up the place and threaten nearby restaurants have been prosecuted for their crimes, though.

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You thought wrong, sadly. At least not in the legal definition of the term.

Outlets that were pushing this ridiculous theory soon backtracked when people started showing up with guns, and they might face some actual legal repercussions, but merely spouting the lies themselves aren't legally fraud.

YouTube ripped down the video on Friday (December 15th), only to reinstate it over the weekend. We’re unclear why this occurred, though the FCC may have challenged the takedown with a ‘fair use’ defense for parody.

Then, enter Baauer, the DJ who was responsible for the "Harlem Shake" song.

Baauer (aka Harry Rodrigues) allowed that meme by allowing anyone to appropriate his song for their own ‘Harlem Shake’ versions. People may not have realized it, but every single ‘Harlem Shake’ video involved a free copyright pass from Baauer.

But Baauer didn’t license the track to Pai. In fact, the FCC, Daily Caller, or Pai never sought permission.

That caught the attention of Diplo, who alerted Bauuer to the issue. Accordingly, Bauuer is vowing to litigate. “I’m taking action,” Baauer tweeted.

“Whatever I can do to stop this loser.”

That's not to mention that John Williams, the composer for the Star Wars theme, who may also sue the FCC. It seems that there will be a lot of copyright lawsuits aimed at the FCC, who is supposed to be respecting copyrights owned by other people. Nice to see the government stealing the copyrighted content created by musicians and artists.

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You might want to read the rest of the article before posting. Their use is pretty blatantly fair use, and fair use of something without their permission is not disrespecting their copyright. Suing someone when they use your copyright fairly is.

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> That's not to mention that John Williams, the composer > for the Star Wars theme, who may also sue the FCC.

John Williams would never do that. It's not the sort of person he is. He's in his 80s and he has much better things to do with his remaining time on earth than fight over a few seconds of music used in a goofy YouTube video.

But even if he were the sort of person who would sue, he would lose for various reasons:

(1) The aforementioned Fair Use exception.

(2) John Williams doesn't own the copyright on the STAR WARS music he wrote. He composed it as a work-for-hire for 20th Century Fox. They own the copyright, not Williams. (Now that Disney has bought Fox, Disney presumably owns the copyrights.)

“They ignore basic truths. For instance, the conspiracy supposedly is run out of the restaurant’s basement. We don’t even have a basement.” — James Alefantis to the BBC

“Well, we make everything from scratch. Other restaurants, even good restaurants, will, like, not roast their own peppers. Like our sauce, we harvest a whole crop of organic tomatoes, 10 tons of tomatoes every year. Can them all, store them in the basement, have like a harvest party when it gets loaded in.” — James Alefantis to Metro Weekly

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A discrepancy easily explained if you look at the facts.

Alefantis owns more than one restaurant. He uses another restaurant's basement for storage. The restaurant at the centre of this ridiculous conspiracy theory is the location without a basement. Photos that circulated purporting to show the basement were in fact taken at another location.

It's strange how these things don't look as scary if you include all the facts.

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From the original article (emphasis added):

MW: Meanwhile, another celebrity chef was helpful in putting Comet on the map — Guy Fieri, who filmed an episode of his popular Food Network show Diners, Dive-Ins and Dives there five years ago.
ALEFANTIS: It’s so crazy. We had been open a few years by then. It took forever for Comet to be figured out. People were like, “You’re just a beer bar.” They didn’t appreciate what we were doing with the food right away. And I was honestly a little bit nervous. Because I had Buck’s, which had gotten good reviews. And I was young, and nervous to put myself out there. At Comet I was the chef, and I was thinking, “What if people don’t like my pizza?” So I didn’t really do anything, I didn’t really tell anyone.
Then the Food Network called, and I thought, “Oh, this will be cool, we’ll do it.” I didn’t really know the show even. His producers said, “You need to close for a day. These are all the requirements.” We filmed all day for two days. And as we’re cooking, they’re like, “You make this?” I said, “Yeah, what do you mean?” And they say, “You know, this is the best restaurant we’ve ever done.”
MW: What was it they couldn’t believe you had made?
ALEFANTIS: Well, we make everything from scratch. Other restaurants, even good restaurants, will, like, not roast their own peppers. You can just buy the roasted peppers in a can. Or you can buy garlic oil. Some products you can get, and they’re consistent and they’re easy. But I didn’t even know that existed actually until they said that. I was like, “What do you mean? There’s another way? You can just buy these things?” Because a lot of restaurants will open a can and put it on. Like our sauce — we harvest a whole crop of organic tomatoes — 10 tons of tomatoes every year. Can them all, store them in the basement, have like a harvest party when it gets loaded in.
Guy was very enthusiastic. We had a really great long segment, and it aired, and we had a viewing party. The next day I’m exhausted, I come late, and there’s literally a line from the front of the restaurant, down and around the corner.

I don't see anywhere in the article where he says he stores all his food in a separate restaurant and brings it to Comet Ping Pong when he needs it. The context would be him talking about the basement in Comet Ping Pong, not a separate restaurant down the street. If you have information otherwise, I'd be interested in seeing it.

It doesn't matter what the context of the original quote was. The basement does not exist in the Comet Ping Pong location. End of story. Only lunatics and liars are keeping this ridiculously stupid conspiracy story afloat.

Re: Re: What else is new in the U.S.?

I worked with a person back before the turn of the century and that guy was convinced that airplanes were going to fall from the skies. He bought a bunch of that prepper crap. I could not tell if he was disappointed when nothing happened.

Re: I took latest Daily Caller piece as parody, think you've been played yet more.

Wow this is a stretch and a half. Google isn't relevant to the discussion on net neutrality, so any "true stab at Google" is not true, it's misdirection. If you are worried about Google's power/influence that is a completely separate discussion as nothing proposed has any affect on that whatsoever.

Re: I took latest Daily Caller piece as parody, think you've been played yet more.

Net neutrality has been seen as some form of uber-piracy enabler - the MPAA demanded exceptions to it, and Richard Bennett insisted that net neutrality wouldn't help piracy like it promised so it deserved to die (if you can wrap your head around that logic).

So it's somewhat funny to see a move widely celebrated to aid uncontested copyright enforcement, accuracy be damned, get fucked over by copyright.

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"Net neutrality has been seen as some form of uber-piracy enabler"

I think the word piracy is just another term uses against that which you do not like. There are many to choose from and maybe there should be an app for that. You enter your gripe and it provides a derogatory comment making use of one or more dog whistle words.

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Pretty much. The term has devolved to a term rendered meaningless by overuse, on par with "terrorism" and "think of the children". Copyright advocates haven't helped their case since they want their enforcement systems to be unquestionable by design - so under a belief that fair use does not and should not exist, you have people throwing copyright takedowns around for anything from dancing babies to conversations someone finds disagreeable.

Of course, this means that decreasing amounts of people are willing to take copyright seriously. Too much bullshit, they've realized.

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It's true it's gotten so bad that no one takes copyright law seriously anymore and basically everyone ignores it at least in some cases. Unfortunately what this means is that most people also don't think it's a problem, so they don't fight it. Since nearly everyone is breaking the law, the copyright holders pick their targets for political, anti-competitive, or other reasons instead of copyright related reasons, leaving the majority who are not singled out apathetic.

This article helped me make the following connection: the reasons we have fair use protections--to promote discourse-- are similar to the reasons why we need net neutrality protections-- to promote access to the public square.

Net Neutrality Demo

Well, I think at some point someone will figure out this video will prove *very* embarrassing to Ajit Paj, and be part of the inevitable court case -- not to mention a solid case he is unfit for office.

So, a quick demo from Youtube with random notices: This video unavailable because Verizon(or comcast) didn't like the content and the FCC doesn't care,

Let them sue!

There's still a possible future outrage: if Mad Decent and/or Baauer actually sue over it, which hopefully any reasonable lawyer will talk them out of doing.

Hell, no.
Can't you imagine a beautiful scene where Ajit Pai has to defend himself using the fair-use argument against those copyright abusers?
What an amazing would be the world if we could call him Ajit Pai, destroyer of net-neutrality and protector of fair use.

Re: You're right, Mike...

A Quick word...

..about Moral Rights. True they've never been accepted for music in this country, but notice that it hasn't stopped dozens of artists - Bon Jovi, Mellencamp, Springsteen, et al - freaking out when someone they don't support uses one of their songs, even when the song has been properly licensed, and most of them are. I don't remember which artist had a moral hissyfit about John McCain using one of their songs, but even though McCain was able to prove the song had been appropriately licensed for use at one of his rallies when running for President, he still stopped using it because the person asked him to. He didn't have to, but he did. I'm not sure how I feel about that either. On the one hand, it was a goodwill gesture. On the other hand, if the candidate properly licensed the tune, the artist got his 1/10th of 1% royalty on it, and as such, should have probably have sat back and collected his check. The whole thing is bogus anyway, and hopefully the courts can set the FCC back on the correct path and force them to enforce net neutrality...honestly, how this simple issue turned into a political hot potato I will never understand...it's just ridiculous...and like Mike, I had to be converted - I was against it until I did some really thorough research and realized the Wheeler FCC was right on the money with their rules...anyway, just my 2 cents on the matter...

Re: Re: A Quick word...

That's one thing, but the real problem is the fact that so many people have taken to treating politics as a team game. For some people, it's as simple as - Democrats supported NN, so as a Republican I must be completely opposed to it. Rules were put in place when Obama was in charge, so as a Trump supporter I must support him removing them.... and so on.

Once you're in that cargo cult mode, it will take more than mere facts and nuanced realistic arguments to get you out of it. Add to that the many lies about what NN is in the first place, and you have your answer.

If nothing else, more than a few nihilists...

Re: "you can do everything"

Well that hasn't been true for a decade. It isn't that it "will be" broken. The network is already broken.

The way you know that is that a TCP session that runs fine on the LAN won't stay up across the carrier networks because their QOS switches are suspending old TCP flows at layer 4. This can be validated by putting one of their switches on a bench and leaving some SSH session up through it for a few hours.

The "Internet" is OSI layer 3. ANY intervention with traffic above OSI layer 3 is constraint of trade and speech. Unlawful intervention in consumer traffic has been going on, even under Title II. What we are getting when we buy "broadband", isn't Internet. It hasn't been for a long time now.

So Mr. lawyer terrorist whose never touched a piece of networking equipment in his life, we are pleased that you have made your declaration, and are assured now that you personally guarantee your expressed outcome.